Show me your papers! The flawed internal logic of attrition through enforcement

The Secretary of State of Kansas, Republican Kris Kobach is the mastermind behind the Republican-favoured policy of attrition through enforcement: a policy to deal with migrants without papers in the United States.  Attrition through enforcement functions on the logic that if conditions are difficult for people living in the U.S. without immigration authorization then they will leave – something the proponents of the policy call “self-deportation.”

The policy proposes to make life difficult for migrants without documents using six different strategies: prevent employment with electronic surveillance in the workplace, curb the use of Individual Tax Identification Numbers (ITINs), permit state police to make immigration arrests, record who is leaving the country by requiring exit visas, remove more people who do not have any criminal conviction following regular routine immigration checks, and allow states to pass laws intended to “discourage illegal settlement”.

While the policy requires increased surveillance, which will inevitably lead to either racial and ethnic profiling or tendencies towards a police state for all people resident in the U.S. (for example, routine checks of immigration status to meet the objective of removing people who have never been convicted of any crime or misdemeanor); and while it includes flaws in economic logic (such as reducing ITINs because these allow undocumented migrants to claim tax breaks.  As in breaks.  As in paying fewer taxes that what they are already paying despite the fact that they can make no claim to social security services, the proponents admitting that this will encourage more cash-in-hand work and tax evasion); the main problem with the policy I want to pinpoint is the flawed internal logic of it.

The premise of attrition through enforcement is that if you change the circumstances in which people live those people will be compelled to migrate.  If survival becomes too difficult people will be compelled to move.  The problem with this logic is simple: the rhetoric of “illegal” immigration, the notion that all people who do not have papers in the U.S. are in some way committing a crime, suggests that the act of evading immigration law is always active and agency based.  That is to say people consciously and deliberately evade immigration law.  This tends to discount both passive evasion (such as overstaying a visa) and structural reasons for migration (being compelled to move despite associated difficulties because survival at home is too difficult).  The rhetoric of “illegal” immigration that is used to justify attrition through enforcement suggests that people have deliberately broken the law in the U.S. so that they can access goods and services that they do not have the right to access.  This discounts poverty as a structural motivation, it discounts lack of knowledge of the law, it discounts lack of choice such as being brought to the U.S. as a child.  Neoliberal and libertarian ideologies discount structural forces as compelling individual behavior.  They focus on agency, individual choice.  The logic of these ideologies says that because individuals who migrate deliberately evade immigration law, they engage in “illegal activity” and they consciously make a choice to do so.

The flawed internal logic of attrition through enforcement becomes clear: the policy uses structural motivations, such as changes in the quality of life in the U.S., to bring about “self-deportation.”  If structure is a motivating factor to compel migration then there are a myriad of reasons based on civil, political, social, and economic rights to explain why migration might happen from Mexico and other countries towards the U.S.  If structure is not a motivating factor then attrition through enforcement can never work because it relies on structural motivation to effect the removal of migrants.  The policy assumes that migration is an individual choice when it is towards the U.S., but then relies on structural deterrents to compel people to leave the U.S.  So what we have to conclude is that the proponents of attrition through enforcement recognize that structural forces can compel the movement of people, yet they disregard these forces when migration is towards the US.  Hence, they actively disregard the claim to civil, political, social and economic rights made by people through the action of migration.  Proponents of the policy are not interested in the international circumstances or structures that mean undergoing the difficulties and dangers of migrating without inspection are worth it. They simply want to make life worse for migrants in the U.S. than what it was in the circumstances that compelled them to move to the U.S. in the first place.  This creates a deficit, whereby a population has no access to rights either at home or abroad.  The policy ignores international (and domestic) human rights understood as rights for all humans.  Rather, it prefers to think of rights as only for U.S. citizens.  And proponents of the policy are willing to forgo some of the rights of U.S. citizens (for example, in the form of random or profiled immigration checks) to make sure other humans cannot enjoy them.

The United Nations Committee on World Food Security has put forth guidelines to protect security of land tenure and governance and will be considered by the UN Food and Agriculture Organization at its October 4^th meeting in Rome. This white paper, called Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security, is meant to protect the rural poor against the growing issue of international land-grabbing (http://www.fao.org/news/story/en/item/142587/icode/). 

Land-grabbing, as an international issue has gained traction among nongovernmental organizations and transnational advocacy networks (http://landportal.info/landmatrix/get-the-idea), especially following the 2008 financial collapse in Western Democracies (http://www.nytimes.com/2010/12/22/world/africa/22mali.html?pagewanted=all&_r=0 ).  Investors sought security in tangible assets, often in developing states. This wave of international investors encouraged local governments to displace local farmers who have little recourse for action.  Investors who have an incentive to develop their land can help to bring mechanization and modern farming techniques to improve a country’s agricultural output ( http://www.oaklandinstitute.org/bbc-africa-debate-%E2%80%98land-grabbing%E2%80%99-good-africa ),  but this empirical debate neglects farmers’ rights and community rights over parcels of land.

The Voluntary Guidelines on the Responsible Governance of Land, Fisheries, and Forests asks states to recognize and protect legitimate land tenure rights in formal and informal systems.  These guidelines do not provide sanctioning instruments for the United Nations. However, states that adopt these guidelines signal to other states that they take seriously the rights of their rural poor. Adopting the guidelines and neglecting its constituent parts will invite critiques from non-governmental organizations, transnational advocacy networks, land policy scholars, and (most importantly) local attorneys. States need a reason to adopt these guidelines, whether incentives come from those same transnational actors, local movements, or member states of the United Nations.  

In this debate there is set of international and domestic actors at play: developing states, international investors, the UN, local farmers, NGOs/TANs, and local advocates such as attorneys and cultural institutions.  The argument tends to boil down to economic claims (investment brings development and more food, and is thus good) and claims about rights (basic property rights and government’s authority).  Both sets of claims draw conflict: empirical claims about increased food production as a result of economic investment may be the result of international investment, but it is difficult to say that increased tenure security and access to agricultural loans would not improve local farmers’ productivity. Likewise, states debate the nature and basis of land ownership: community rights can clash with individual rights, and the rights of owners as citizens can conflict with a community’s rights to direct and determine ownership.

The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests makes a first step to protecting the rural poor in developing states.  Were the UN to adopt this white paper as a formal convention, NGOs/TANs, local advocates, and local farmers would receive a rhetorical tool for future debates and, perhaps, a common legal foundation to challenge future land-grabbing.